Wednesday, October 17, 2018

Pre-Existing Conditions, Severability, and the "When" Question in Statutory Construction

by Michael C. DorfIn my latest Verdict column, I take aim at one of the many lies in the op-ed that appeared last week in USA Today under Donald Trump's name--the claim that the president has kept his promise to protect health insurance for people with pre-existing conditions. I explain that the claim does not pass the laugh test. Among the reasons I give is the administration's support for a pending lawsuit by Texas and nineteen other states that, if successful, would invalidate the Affordable Care Act's prohibition of screening out or charging extra for persons with pre-existing conditions.

The column describes the lawsuit's key argument in greater detail, but the very short version goes like this: (1) the ACA's individual mandate was upheld by the SCOTUS as a tax; (2) Congress eliminated the tax late last year as part of its tax cut law; (3) therefore the mandate no longer has a constitutional basis; (4) the mandate was designed by the Congress that enacted the ACA to work hand-in-glove with the protections for people with pre-existing conditions; (5) thus, a court cannot sever the mandate from those protections; and (6) accordingly, the protections are invalid.

To decide a severability question, a court must determine whether Congress would have wanted the portions of the statute that do not by themselves violate the Constitution (here the pre-existing conditions protection) to remain operative without the invalid portion (here the mandate without the tax). I say in the column that the non-severability claim made by Texas is extremely weak, because we don't need to guess what Congress would prefer: Congress, just last year, told us what it prefers. It left the rest of the ACA intact when it reduced the tax to $0.

Nonetheless, at a hearing last month, Federal District Judge Reed O'Connor seemed sympathetic to the non-severability argument. My column notes that while that is alarming, it should not be surprising. Over the last eight years, Republican-appointed federal judges have been remarkably receptive to what we might politely call "creative" arguments that aim to destroy the ACA. But there is--or at least should be--a difference this time. While in prior challenges to the ACA, conservative legal scholars crafted some of the arguments that conservative judges accepted, to their credit, conservative legal scholars have joined with more liberal ones in arguing that Texas's non-severability argument is unpersuasive.

I am thus cautiously optimistic that the courts will ultimately reject the argument for non-severability. The issue deserves some attention, however, because there is no guarantee that the case will come out right, and it raises a question of wider importance.

Subject to some constitutional limits not relevant here, severability is a matter of statutory construction. Thus, one way to understand the dispute in Texas v. United States is as an argument over which Congress's intent matters. The argument I laid out above straightforwardly points to the most recent Congress to have addressed the issue, in 2017. But Judge O'Connor expressed sympathy for the claim by Texas that the key Congress is the one that passed the original ACA in 2010. On its face, that is a highly peculiar view. After all, a fundamental principle of statutory construction holds that in cases of conflict, the later-in-time provision prevails. Why might Judge O'Connor think otherwise?

Perhaps he thinks that the 2017 action did not alter the original ACA in a relevant way. Certainly there are circumstances in which a later-in-time law alters an earlier one but not in a way that is relevant to some case. Suppose that in 2017 the legislature in some state amends the traffic code to redefine "vehicle" to include "battery-assisted bicycles." There then arises a dispute over the meaning of a provision of the traffic code enacted in 2010. If that dispute involves a car rather than a bicycle, then insofar as legislative intent matters, it would be appropriate to look to the legislature's intent in 2010 rather than in 2017, because the 2017 amendment is simply not relevant to the case.

But of course that hypothetical example has very little to do with the actual dispute in Texas v. United States. Even assuming that Congress in 2010 would have preferred no protection for people with pre-existing conditions to protections that were not backstopped by a mandate--itself a contestable assumption--the 2017 amendment spoke much more clearly to the severability question than the original 2010 enactment did. Congress in 2017 could have chosen to eliminate both the protections for pre-existing conditions and the tax penalty for failing to obtain insurance, but it eliminated only the latter. Texas v. United States is like a case about battery-assisted bicycles, not cars.

Readers might find amusing the fact that in arguing for the ACA's invalidity, Texas relies on the supposed intentions of the Democratic Congress that passed it in 2010 rather than the intentions of the Republican Congress that effectively repealed the mandate in 2017. That's not just ironic; it's telling. Although nearly everyone in the 2017 Congress who voted for the legislation that reset the tax penalty to $0 would have wanted (and likely still wants) the rest of the ACA to be repealed along with it, Republicans could not quite garner a simple majority in the Senate to repeal all the portions of the ACA that could be repealed under the reconciliation procedure, much less the 60 votes that would be needed to repeal those portions that could not be eliminated using reconciliation. Texas and perhaps Judge O'Connor must look to the imagined intentions of the 2010 Democratic Congress because, strange as it may sound, the actual intentions of the 2017 Congress would appear to preserve the pre-existing conditions protections of the ACA.

Meanwhile, we might problematize the whole notion of asking what Congress would have intended. After all, there is a serious tension between the argument Texas makes for non-severability and the approach that judges--especially conservative judges--tend to follow.

Textualists have long argued against being guided by the subjective intentions of lawmakers as opposed to the texts they enacted. Textualism is often defended in opposition to intentionalism, but I have argued (as have others) that for some time now the chief rival of textualism is purposivism, not intentionalism. Purposivist judges share textualist judges' skepticism of subjective legislative intentions, but when text is not clear purposivists look for guidance in the broad purposes that can reasonably be ascribed to the legislature. We need not rehash the debate between textualism and purposivism here. The key point is that under either of these two leading approaches, a judge would reject as hopelessly indeterminate the effort to discover what the legislature would have intended if it had been told that part of a statute it enacted was invalid.

Finally, I would note that the problem presented in Texas v. United States is extraordinarily common. Severability issues arise or can arise in just about every constitutional case. Given the frequency with which legislatures amend statutes, there will then be some need to harmonize or prioritize among statutory provisions enacted at different times. That task, in turn, is simply a particular application of a maneuver required in just about all cases of statutory interpretation.

Put differently, a judge called upon to decide a severability question arising out of an amended statute is a bit like Molière's bourgeois gentilhomme, who is surprised (and delighted) to learn that he can speak prose. To decide a severability question arising out of an amended statute is to engage in a task in which judges have a great deal of experience. In a reasonably mature legal system, statutory interpretation frequently is inter-temporal synthesis or prioritization.

8 comments:

I apologize if what follows appears to be trolling. Please delete after reading (if you read). This is meant only for you and in good faith (if you choose to take it up, great, if not, okay, too). Would you kindly revisit and give your views of Harvard's conduct with respect to Elizabeth Warren? It seems to me that you would be well-placed to fill in many of the gaps in the media's understanding about how faculty appointments work, such as how the hiring process really works from search (as I understand conducted by one or a handful of admin-oriented types, who are more keenly attuned to pressure groups, not the full faculty, which may still even have old-fashioned racism lurking about even if unstated) to faculty approval, and also the real benefits of making a seemingly lateral move (e.g., from Texas to Penn) when that move also joins the law-professor spouse (from Wash. St. Louis to Penn). These points are missed here:

Warren lied about being Native American (I don't think this is a debatable position), and Harvard's administrative types clearly used that lie (perhaps not knowing it to be a lie, but that's questionable) to deflect pressure from minority advocacy groups. It appears to me that Warren's lying was very likely intended to increase her leverage to get a satisfactory position, and that a situation where she is at Texas and her husband is in St. Louis is manifestly unsatisfactory. That is at least a colorable motive that is not being explained to people. To me, the defense of her and Harvard given -- that the 55 of 60 old white men in the room thought she was white -- is the opposite of a good point, because it means an administrator, attuned to protest group pressure, passed off a person as white where her Native American-ness might have hurt her (it is extremely condescending to the whole affirmative action enterprise to assume there is no real or potential racism, albeit carefully concealed, among the Harvard faculty ca. 1995) but then passed her off as Native American when it suited the administration. Either way, it was all a lie, that included lying in federal reporting requirements.

To put this in context, imagine a union lying about its membership, claiming that everyone with a family story of some distant Cherokee relative was a minority. It would never fly. This is where Trump and Trump's racism gets oxygen. Harvard gets away with this grotesque hypocrisy. Unions -- who want a better shake for working class Americans -- forget it. There needs to be some accountability here.

Again, I apologize if this seems like trolling. I read your blog because your writing is usually very balanced and measured.

Hi Alex. Thanks for the comment. I don't yet know enough about what Sen. Warren told Harvard, what Harvard told the world, etc., to have a view, but I hope to look into it at some point and if I think I have something useful to say will do so. (Also, your comment is off topic but not what I'd call trolling.)

"The Congressional Budget Office (CBO) in its analysis of the effects of the individual mandate repeal assumed that as long as the requirement remained in the law, some individuals would continue to purchase individual coverage because it was legally required, even if the penalty was repealed. This no doubt explains why the CBO concluded that the repeal of the mandate would reduce federal expenditures over ten years by $338 billion, but opined that repeal of the penalty in the tax bill would reduce expenditures by only $318 billion."

https://www.healthaffairs.org/do/10.1377/hblog20171220.323429/full/

The inclusion of the mandate with a $0 tax penalty also is practical for other reasons cited. But, if even a horatory mandate will influence some people to buy insurance and have other effects, I wonder if it also has taxation effects. If so, perhaps the tax power is still involved. Of course, I thought and think the mandate is clearly allowed under the Commerce Power (Kavanaugh might agree; after all Senator Collins assures us he is a moderate).

As to the discussion, yes. CJ Roberts in King v. Burwell wrote for six justices:

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

Hopefully, at the very least, the court of appeals will take that to heart.

"Even assuming that Congress in 2010 would have preferred no protection for people with pre-existing conditions to protections that were not backstopped by a mandate--itself a contestable assumption--the 2017 amendment spoke much more clearly to the severability question than the original 2010 enactment did. Congress in 2017 could have chosen to eliminate both the protections for pre-existing conditions and the tax penalty for failing to obtain insurance, but it eliminated only the latter."

I think that's right on the money.

The controversy in the litigation stems from trying to square the amended law with the Court's strained reasoning for upholding the mandate. In that regard it has nothing really to do with Congress's intent.

All that remains is an assertion that may have been true before the law was amended, as you put it: "the mandate was designed by the Congress that enacted the ACA to work hand-in-glove with the protections for people with pre-existing conditions."

As you write, given that Congress apparently didn't agree because it didn't amend those parts of the law, the assertion should go nowhere.

Rather than chasing the purposivist logic, as the plaintiffs are, it is sufficient to say that for better or worse Congress enacted a law in 2017 that allows for protections without an enforceable penalty/mandate.

I think you well describe a problem with trying to divine Congressional intent, even where obvious, such as those amending the law wanting the now contested provisions to go away. Maybe they anticipated the courts doing the work for them, but that's not important.

"To decide a severability question arising out of an amended statute is to engage in a task in which judges have a great deal of experience. In a reasonably mature legal system, statutory interpretation frequently is inter-temporal synthesis or prioritization."

I agree on this also. Hypothetically if there were a constitutional convention and the Constitution were simply re-adopted in toto, I think the same meaning should persist as before (whether from an Originalist or Living Constitutionalist view). The only intent to divine is that the re-adopters wanted to hew to what the Constitution previously meant (whatever that may be), else they would have amended it in some fashion. That's the most straightforward reading. Maybe it would be a devious plot by Living Constitutionalists to compel Originalists to refer to 2018 dictionaries and values (and maybe we could broadly recognize that as fact) but without amending the language it should not have that effect.

Assuming Joseph's constitutional convention were pursuant to Article V, would the "simply re-adopted in toto" Constitution require the ratification called for by Article V? If so, originalism would seem to fixate on 2018 original public meanings of the original Constitution and all of the Amendments, unless the re-adoption included a specific provision for original public meanings as of earlier ratification dates. Perhaps to avoid updated original public meanings, the the better course would be for the constitutional convention to take no action and dissolve, with the result that at least originalists could rely upon original public meanings as of earlier ratification dates for the Constitution and its Amendments, thereby thwarting "a devious plot by Living Constitutionalists."

By the way, few originalists rely upon intent. Perhaps in considering Joseph's hypothetical, we might adapt Mike's closing sentence of his post to read:

To be more precise we can adapt Prof Dorf's sentence. The work of interpreting the 14th Amendment is foremost in mind.

My use of the word "intent" is used in a limited sense, not directed at an Originalist reading. I think Originalists and LCs alike may take the view that simple re-ratification has no effect on how they interpret the Constitution. Granted it's less problematic for the LCs. And some Originalists or LCs may take the opposite view of mine - as you do - I just don't find it persuasive.

Yes, Joseph's hypothetical is not realistic, far from it, considering efforts of conservatives pushing for an Article V convention, being only a few states short, making it difficult to imagine that a convention would come up with blanks, i.e., no amendments, merely coming up with a "simply re-adopted in toto" Constitution, failing to provide, presumably, anything upon which to present to the states for ratification. What would the states vote on to ratify without an amendment being proposed? What if 3/4s of the states did not not vote in favor of a "simply re-adopted in toto" Constitution for who knows what reasons? Or, what if 3/4s of the states voted in favor of a "simply re-adopted in toto" Constitution. Might that be a Kumbaya constitutional moment? Or might it be a "simple re-ratification" of the Constitution, sort of like a Golden Anniversary restating of wedding vows? If a "simple re-ratification," how might various theories of originalism be applied?

Mike's post addressed an actual serious issue pending concerning the impact of a federal statute amending an earlier statute and how to apply the Court's severability doctrine. Mike makes a strong argument in his post with which Joseph seems to agree. But Joseph's hypothetical takes a huge leap from federal statutes to the Constitution not being amended, jumping into the battlefield of originalism vs. LC (better termed non-originalism). Perhaps Joseph was prescient that Eric would be posting on some current moves in that battlefield. Hypotheticals can be fun, even Monty Python-esque. But I did raise a question that no one has taken the bait on:

"In any event, has severability been an issue with the Constitution as it has been amended?"